CC No.2127.2014

Filed on 15.12.2014

Disposed on 20.07.2017

BEFORE THE III ADDITIONAL BENGALURU URBAN DISTRICT

CONSUMER DISPUTES REDRESSAL FORUM,

BENGALURU – 560 027.

DATED THIS THE 20^th DAY OF JULY 2017

CONSUMER COMPLAINT NO.2127/2014                                                                                                                                                                                                                                                   

PRESENT:

    Sri.  H.S.RAMAKRISHNA B.Sc., LL.B.

            PRESIDENT

                 Smt.L.MAMATHA, B.A., (Law), LL.B.

                          MEMBER

                                            V/S

ORDER

BY SRI.H.S.RAMAKRISHNA, PRESIDENT

1. This Complaint was filed by the Complainant on 15.12.2014 U/s 12 of the Consumer Protection Act, 1986 and praying to pass an Order directing the Opposite Parties to pay a sum of Rs.5,58,508/- together with interest and other reliefs. 

2. The brief facts of the complaint can be stated as under:-

In the Complaint, the Complainant alleges that the Complainant is the owner of the vehicle Maruthi Swift Silver Colour car bearing Registration No.KA-53-MA-3562.  The said car was insured with the Opposite Parties on 11.01.2013.  The insured value for the car was shown as Rs.5,58,508/-.  The said insurance was valid from 11.01.2013 till 10.01.2014 the policy No.OG-13-1701-1801-00052241.  He was residing at Bengaluru at the time of purchase of the said car.  Since, he was transferred to Mumbai on 28.05.2013 he moved the said car from Bengaluru to Mumbai through a plan packers and movers.  The car was moved in a truck from Bengaluru to Mumbai and the same was brought to Mumbai on 01.06.2013.  The said car was received by Sri.Rajesh and Dinesh of the transportation Company and was parked on the roadside opposite to high city symphony building sector No.34C at 4 pm.  When the said Rajesh and Dinesh went back to the place where the car was parked they found the car missing.  They immediately made the search and when they were unable to trace the said car they lodged a complaint to Jurisdictional Police at Mumbai.  The Mumbai Police have registered a theft case in Crime No.1149/2013.  When the police were unable to trace the car, the Complainant made a claim of Rs.5,58,508/- to the Opposite Party.  The Opposite Party replied to the said claim taking untenable contentions and rejected the claim.  The said act of the Opposite Party in not paying the insured amount of Rs.5,58,508/- amounts to deficiency of service.  Hence this complaint.

3. In response to the notice, the Opposite Parties put their appearance through their counsel and filed their version, in the version pleaded that the complaint is totally misconceived and is based on erroneous assumptions of facts.  The policy issued is subject to various terms, conditions, exceptions, limitations thereof.  The present complaint is false, vexatious, frivolous and is aimed to harass the insurer.  The claim of the Complainant is not maintainable as against Opposite Parties and that complaint is totally misconceived and the complaint is devoid of any material particulars as against the Opposite Party.  The Opposite Party who is neither a necessary nor a proper party for the adjudication of the present complaint. The policy of insurance was issued in the name of the Complainant, being the registered owner of Maruti Swift ZXI vehicle bearing No.KA-53/MA-3562, of Model 2012 and was insured with this Opposite Party for the period from 11.01.2013 to 10.01.2014, since being a new vehicle under Engine and Chassis No., vide policy bearing No.OG-13-1701-1801-00052241, Rs.5,58,508/- being the Total Value.   The policy issued is subject to various terms, conditions, exceptions, limitations.  The subject to Hypothecation Agreement with National Bank for Agriculture and Rural Development, Bengaluru and that financial interests of financer being involved, it is proper and necessary party to the proceedings but being not joined, complaint is bad-in-law for non-joinder of proper and necessary parties and deserves to be dismissed.   The Complainant moved the said car from Bengaluru to Mumbai through a “Plan Packers and Movers” are based on documents, in view of the fact that the said “Plan Packers and Movers” had further entered into a contract and entrusted said insured vehicle Maruti Swift ZXI No.KA-53/MA-3562 to J.S.R.Car Transport Company.  Wherein, as per Receipt No.7423, dt.28.05.2013 of Plan Packers and Movers amounting to Rs.29,800/- does relates to shifting of house old articles of Complainant from Bengaluru to Mumbai vide L.R.No.7430, dt.28.05.2013 and that Receipt No.7424 dt.28.05.2013 of Plan Packers & Movers, amounting to Rs.14,100/- does relates to shifting of Maruti Swift Car No.KA-53/MA-3562 from Bengaluru to Mumbai, vide L.R.No.7430, dt.28.05.2013 and that Receipt No.7424, dt.28.05.2013 of Plan Packers and Movers, amounting to Rs.14,100/- does relates to shifting of Maruti Swift Car No.KA-53/MA-3562 from Bengaluru to Mumbai, vide L.R.No.7431, dt.28.05.2013. That as per the said L.R.No.7431 dt.28.05.2013 of Plan Packers & Movers the Declared Value is since stated as “No commercial value’ and Truck number for transportation of the vehicle No.KA-53/MA-3562 is stated as, “KA-03/A-9783”.  The Complainant had entered into a contract with Plan Packers & Movers for transportation of Maruti Swift Car No.KA-53/MA-3562 from Bengaluru to Mumbai in Truck No.KA-03/a-9783 vide L.R.No.7424 dt.28.05.2013. However, the said transporter/carrier Plan Packers and Movers.  Wherein, the said Plan Packers & Movers had entered into further contract and entrusted said insured vehicle Maruti Swift ZXI No.KA-53/MA-3562 to J.S.R.Car Transport Company, vide S.No.238, dt.28.05.2013 of J.S.R.Car Transport Company, amounting to Rs.5,000/-.   The Complainant had failed to mention the registration of the Truck in which the insured vehicle was shifted from Bengaluru to Mumbai by J.S.R.Car Transport Company and as well the receipt vide S.No.238 dt.28.05.2013 and Challan No.225, wherein in all six cars alleged to be transported from Bengaluru to Mumbai, also does not contain or indicate in which vehicle/Truck, the insured Maruti Swift ZXI No.KA-53/MA-3562 was shifted from Bengaluru to Mumbai.  However, though the Maruti Swift ZXI No.KA-53/MA-3562 was alleged to be brought to Mumbai on 01.06.2013 and that the delivery of the said Maruti Swift ZXI No.KA-53/MA-3562 was taken by Mr.Anil Kumar Yadav, an employee of the transporter near Aishwaraya Hotel, Kuthari Village, Old Panvel Road and that since residing at Simkani Building, Room No.201, Plot No.23, Sec.34 C, Kharghar, Near Tricity Navi Mumbai along with his friends Rajesh and Dinesh Kumar had parked the Maruti Swift ZXI No.KA-53/MA-3562 on the road opposite to the building 34 C Simkani Building, wherein, Mr.Anil Kumar Yadav was residing, since provided by the Company which Mr.Anil Kumar Yadav works.  Further, that the Opposite Parties are not aware in regard to the averments as to that the said car was received by Sir Rajesh and Dinesh of the transportation Company and was parked on the roadside opposite to high city symphony building sector No.34 C at 4 pm, and that the Complainant is put to strict proof.   The said J.S.R. Car Transport Company after receiving above said Car to be transported to Mumbai have failed to do so. Till this date they have not delivered the said Car to the Addressee Mr.T.Suresh at Mumbai.  After many enquiry they said that this car is stolen in Mumbai.   They are misguiding and giving all false information in regarding to Car”.  Immediately, on intimation of the alleged theft of the insured vehicle, the Opposite Parties having deputed an investigator immediately on 04.06.2013.  The Opposite Parties that the alleged theft of insured vehicle having occurred on 01.06.2013 and was intimated the same to the Opposite Parties only on 03.06.2013 and that had failed to intimate the same to the Call center of Opposite Parties, though Mr.Anil Kumar Yadav had lodged belated complaint to the Jurisdictional Police Station only on 03.06.2013.  As per complaint dt.03.06.2013, the alleged theft having occurred on 01.06.2013 in between 4.00 p.m to 10.00 p.m., the belated complaint had been lodged to Jurisdictional Police Station only on 03.06.2013, this delaying by two days.  Hence, the Complainant is put to strict proof of documentary evidence of the same.  Resultant, with the fact that Opposite Parties have been deprived of appointing an investigator or the concerned jurisdictional Police authorities as to investigate and trace the insured vehicle in regard to the alleged theft of insured vehicle.  Thus thereby having deprived of the Opposite Parties as to ascertain the genuine reasons thereof resultant of the alleged theft of insured vehicle.   As per the Investigation Report and the complaint lodged by Mr.Anil Kumar Yadav, Mr.Anil Kumar Yadav and Mr.Dinesh left for some work at Santacruz, Mumbai and at around 8.00 p.m., on 01.06.2013 had been to APMC and after completing the work at around 10.00 p.m., on 01.06.2013 had been to the place where the insured vehicle was parked and found that the car was missing. That the Complainant Mr.Anil Kumar Yadav having enquired with Mr.Rajesh who since replied in the negative, Mr.Anil Kumar Yadav having went to the Flat and found the door latch was open and that having checked the keys of the car, found the keys of the insured vehicle Maruti Swift KA-53/Ma-3562 was missing from the table. As per Condition No.4 of the terms and conditions of the policy of insurance, reasonable steps to safeguard the vehicle from loss or theft had occurred and as such, the above claim of the Complainant is liable to be dismissed.   On receipt of the claim intimation, an investigator being appointed and as well, that letters dt.31.07.2013, 07.08.2013, 26.08.2013, 06.10.2013, 23.01.2013, 02.06.2014 and 18.02.2014 of the Opposite Parties being forwarded to the Complainant seeking further documents thereto as to submit the relevant documents and clarifications and that there being no proper reply from the Complainant, the Opposite Party had left with no other option had addressed yet another letter dt.04.03.2014, indicating repudiation of the claim.  In response to the letter dt.04.03.2014, the claim of the Complainant since being repudiated, immediately thereof, the Complainant had addressed letter dt.11.03.2014 and as well letter dt.16.06.2014 forwarding the final investigation report dt.26.03.2014.  In view of the delay caused by the Complainant in forwarding the relevant documents as to consider the claim of the complaint, the claim of the Complainant thus being further scrutinized had addressed letter dt.08.11.2014 as below seeking clarification thereto as to why the claim of the Complainant be repudiated. To which letter dt.08.11.2014, the Complainant having neither replied nor given any clarification to the clarifications so sought vide letter dt.08.11.2014 of the Opposite Parties, left with no other option, the claim of the Complainant was repudiated vide letter dt.24.12.2014.   There is delay, laches of deficiency in service or disservice on the part of the insurer.   Hence, prays to dismiss the complaint.     
4. Originally this complaint is filed only against Bajaj Allianz General Insurance Company Limited, Ge Plaza, Airport Road, Yerawada, Pune and Bajaj Allianz General Insurance Company, No.897/B, 80Feet Road, 6^th Block, 2^nd Floor, Silver line arcade, Opp.Pizza hut, Koramangala, Bengaluru-560095.  After filing the version by the Opposite Parties, the Complainant impleaded Plan Packers & Movers as Opposite Party No.3.  In response to the notice issued to Opposite Party No.3. The Opposite Party No.3 put their appearance through their Counsel and filed their version.  In their version pleaded that the Complainant is wholly misconceived, frivolous, lacks bonafides, and is bereft of any merits.   The complaint is not maintainable against Opposite Party No.3 as the Opposite Party No.3 is neither a necessary party nor a proper party to the complaint and as such the complaint is not maintainable for mis-joinder of the Opposite Party No.3.   There is no deficiency of services on the part of the Opposite Party No.3 as alleged by the Complainant and in the absence of any deficiency in the services by the Opposite Party No.3, the complaint filed by the Complainant as against the Opposite Party No.3 is not maintainable and the same is liable to be dismissed as against Opposite Party No.3. The allegation that the Complainant is the owner of the Maruti Car bearing Registration No.KA-53:MA-3562 and the same was Registered on 17.01.2013 are denied as false.    The Complainant had entrusted the transportation of the Household articles belonging to the Complainant from Bengaluru to Mumbai vide Consignment No.7430 and the same was transported  by the Opposite Party No.3 to Mumbai and the same was delivered to the Complainant to the satisfaction of the Complainant, similarly, the Complainant had entrusted the transportation of the Maruti Swift Car bearing Registration No.KA:53-MA:3563 to be transported from Bengaluru to Mumbai vide consignment No.7432, and the Opposite Party No.3 had entrusted the said transportation of the said Car from Bengaluru to Mumbai to M/s J.S.R.Car Transport Company, having their registered at No.6, Near Maruti Truck Parking, Carterpuri Road, Gurgaon, Haryana, vide Challan No.225, Receipt No.236 dt.28.05.2013 and the said M/s J.S.R.Car Transport Company took delivery of the said Car from the Complainant for transportation from Bengaluru to Mumbai and accordingly got the same transported to Mumbai which is well within the knowledge of the Complainant and the Opposite Party No.1 and 2 which is not in dispute.  The Opposite Party No.3 was only an inter mediary Transporter who booked the Consignment from the Complainant and the same was rebooked with M/s J.S.R.Car Transport Company and thus the responsibility shifted to M/s J.S.R.Car Transport Company and hence the said M/s J.S.R.Car Transport Company was responsible for shifting of the Car from Bengaluru to Mumbai and deficiency in services as alleged by the Complainant could be alleged only as against the said M/s J.S.R.Car Transport Company and the Opposite Party No.1 & 2 who are the Insurance Company and not as against the Opposite Party No.3.  It is not in dispute that the Maruti Car bearing Registration No.KA:53-MA:3562 was stolen at Mumbai after the same was transported from Bengaluru to Mumbai by M/s J.S.R.Car Transport Company when the said Car was in the custody of M/s J.S.R.Car Transport Company which is well within the knowledge of the Complainant and the Opposite Party No.1 & 2 and the same is not in dispute. Since the said car was in the custody of M/s J.S.R.Car Transport Company the said M/s J.S.R.Car Transport Company would be held responsible and as the said car is insured with Opposite Party No.1 & 2, the Opposite Party No.1 & 2 who are the Insured are liable to pay the compensation for the loss incurred by the Complainant owing to the theft of the said car.  Under these circumstances, the proper and necessary party to the complaint is M/s J.S.R.Car Transport Company and in the absence of the said M/s J.S.R.Car Transport Company the Complaint is not maintainable and the same is liable to be dismissed as against the Opposite Party No.3. 

5. The Complainant, Sri.Suresh T has been filed his affidavit by way of evidence and closed his side.  On behalf of the Opposite Party No.3, the affidavit of Sri.A.Lourd Raj has been filed.   On behalf of the Opposite Parties, the affidavit of Sri.Krishna Sheernali has been filed.   Heard the arguments of both parties.

6.      The points that arise for consideration are:-

1. Whether the complaint is bad for non-joinder of necessary party and mis-joinder of proper party ?
2. Whether the Complainant has proved the alleged deficiency in service by the Opposite Parties ?
3. If so, to what relief the Complainant is entitled?

7.     Our findings on the above points are:-

                POINT (1):- Accordingly

                POINT (2):- Affirmative

                POINT (3):- As per the final Order

REASONS

8. POINT NO.1:- The learned Counsel for the Opposite Party No.3 argued that the Complaint is bad for non-joinder of necessary parties.  Since the alleged car Maruti Swift bearing Registration No.KA-53/MA-3562 of the Complainant was entrusted for transportation from Bengaluru to Mumbai with M/s J.S.R.Car Transport Company and the alleged car was transported to the Mumbai through M/s J.S.R.Car Transport Company, while the said car was in custody of M/s J.S.R.Car Transport Company was stolen at Mumbai, thereby, M/s J.S.R.Car Transport Company is a proper and necessary party to this complaint.   In the absence of M/s J.S.R.Car Transport Company.  This complaint cannot be adjudicated efficaciously, at this ground itself this complaint is liable to be dismissed and further argued that this complaint is bad for misjoinder of Opposite Party No.3.   Since there is no deficiency of service by this Opposite Party No.3.  On the other hand, this Opposite Party No.3 as per the Consignment No.7430 had entrusted the transportation of the Complainant’s Household articles from Bengaluru to Mumbai whereas the alleged car was rebooked for transporting from Bengaluru to Mumbai with                                        M/s J.S.R.Car Transport Company, when the alleged car was in the custody of M/s J.S.R.Car Transport Company the alleged theft was took place thereby it is sole responsibility of M/s J.S.R.Car Transport Company and the insurer i.e., Opposite Party No.1 & 2 who has to settle the claim after alleged loss cause to the Complainant, thereby this Opposite Party No.3 is not a necessary party but the Complainant filed this complaint against this Opposite Party No.3 without any allegation or any deficiency of service on the part of the Opposite Party No.3, thereby this complaint is bad for misjoinder of necessary party. 
9. The learned Counsel for the Opposite Party No.1 & 2 argued that this complaint is bad for non-joinder of necessary party. Since the alleged vehicle is subject to Hypothecation Agreement with National Bank for Agriculture and Rural Development, Bengaluru and that financial interests of financer being involved, thereby National Bank for Agriculture and Rural Development is necessary and proper party.  In the absence of National Bank for Agriculture and Rural Development this complaint cannot be adjudicated efficaciously, thereby this complaint is bad for non-joinder of proper and necessary parties.  
10. The learned Counsel for the Complainant argued that the complaint is not bad for non-joinder of necessary party or misjoinder of proper party.  Nodoubt the Complainant by taking financial assistance with National Bank for Agriculture and Rural Development, Bengaluru has purchased the car and said car was hypothecated with National Bank for Agriculture and Rural Development, Bengaluru that itself is not sufficient to accept that the National Bank for Agriculture and Rural Development is proper and necessary party to this proceedings.  On the other hand, the Complainant being the R.C.Owner is entitled to maintain this complaint, even in the absence of National Bank for Agriculture and Rural Development, hence National Bank for Agriculture and Rural Development is not necessary and proper party.  Even in their absence, this Forum can adjudicate this complaint efficaciously and further argued that the complaint is also not bad for non-joinder of necessary party as alleged by the Opposite Party No.3 i.e., M/s J.S.R.Car Transport Company is not necessary party. Since the Complainant had entrusted his car to transport from Bengaluru to Mumbai with Opposite Party No.3 Plan Packers and Movers in turn Plan Packers and Movers may entrusted the said car of the Complainant with M/s J.S.R.Car Transport Company to shift the car from Bengaluru to Mumbai and the alleged car was stolen when the car was in the custody of M/s J.S.R.Car Transport Company.  M/s J.S.R.Car Transport Company being the agent of the Plan Packers and movers any act committed by the agent is liable by the master, thereby even in the absence of M/s J.S.R.Car Transport Company this complaint is maintainable and this Forum can adjudicate the complaint efficaciously. Therefore, M/s J.S.R.Car Transport Company is not a proper and necessary party and also further argued that the complaint is not bad for misjoinder of necessary party i.e., Opposite Party No.3.  Since, the Complainant entrusted the car for transporting from Bengaluru to Mumbai with Opposite Party No.3, thereby the Opposite Party No.3 is proper and necessary party in the absence of Opposite Party No.3 this Forum can adjudicate this complaint efficaciously, thereby the Opposite Party No.3 is proper and necessary party. 
11. With this argument and on perusal of record, it is not in dispute that the Complainant is the R.C.Owner of the car bearing Registration No.KA-53/MA-3562.  No doubt as argued by the learned Counsel for the Opposite Party No.1 & 2, the alleged car was hypothecated with National Bank for Agriculture and Rural Development, Bengaluru as rightly submitted by the learned Counsel for the Complainant.  Since alleged car is hypothecated with the National Bank for Agriculture and Rural Development that itself is not necessary to accept the argument of the learned Counsel for the Opposite Party No.1 & 2, National Bank for Agriculture and Rural Development is proper and necessary party.  Even in their absence this Forum can adjudicate this complaint efficaciously.  Since the Complainant being the R.C.Owner is empowered maintains this complaint, thereby the argument of the learned Counsel for the Opposite Party No.1 & 2 cannot be accepted.  So also the Complainant had entrusted his car for transporting from Bengaluru to Mumbai with Opposite Party No.3 that is Plan Packers and Movers but not with M/s J.S.R.Car Transport Company.  On the other hand, the Opposite Party No.3 Plan Packers and Movers in turn entrusted the Complainant’s car with M/s J.S.R.Car Transport Company and the alleged car was stolen while it is in the custody of M/s J.S.R. Transport Company who is the agent of Opposite Party No.3 Plan Packers and Movers, thereby even in the absence of M/s J.S.R. Transport Company this complaint can be maintainable and it can be adjudicate the complaint efficaciously.

12. Further the alleged car was entrusted by the Complainant with Opposite Party No.3 Plan Packers and Movers, thereby the Opposite Party No.3 is proper and necessary party, but it is not proper to accept the argument of the learned Counsel for the Opposite Party No.3, when the Opposite Party No.3 is not proper party to this case.  On the ground that the alleged car was theft it is in the custody of M/s J.S.R.Transprot Company.  Since, the Opposite Party No.3 entrusted the car of the Complainant that                 M/s S.J.R. Transport Company which is the agency of Opposite Party No.3, thereby any act of the agent is liable by the master that is Opposite Party No.3, thereby, the Opposite Party No.3 is proper and necessary party.  Hence, this complaint is not bad for misjoinder of necessary party or non-joinder of proper party.  Hence this point is held in accordingly.
13. POINT NO.2:- As looking into the averments made in the complaint and the version filed by the Opposite Parties, it is not in dispute that the Complainant is the owner of the Maruti Swift Silver Colour car bearing Registration No.KA-53-MA-3562 and also it is not in dispute that the said car was insured with Opposite Parties for a sum of Rs.5,58,508/-. The said insurance Policy was valid from 11.01.2013 till 10.01.2014.  Further in support of this, the Complainant in his sworn testimony, he has reiterated the same and produced the R.C.  As looking into this R.C, it is very clear that the Complainant is the R.C.Owner of the Maruti Swift car bearing Registration No.KA-53-MA-3562 of 2012 Model and also produced the copy of the policy, it clearly reveals that the Complainant insured the said vehicle with Opposite Party No.1 & 2 for a sum of Rs.5,58,508/-.  The said policy is in force from 11.01.2013 to 10.01.2014.
14. It is further case of the Complainant, since the Complainant was transferred to Mumbai on 28.05.2013 he moved the said car from Bengaluru to Mumbai through a Plan Packers and Movers.  The said car was transported in a truck from Bengaluru to Mumbai and the same was brought to Mumbai on 01.06.2013.  The said car was received by Sri.Rajesh and Dinesh of the transportation Company and was parked on the roadside opposite to high city symphony building sector No.34C at 4 pm.  When the said Rajesh and Dinesh went back to the place where the car was parked they found the car missing.  They immediately made the search and when they were unable to trace the said car they lodged a complaint to Jurisdictional Police at Mumbai.  The Mumbai Police have registered a theft case in Crime No.1149/2013.  In order to substantiate this, the Complainant in his sworn testimony, he has reiterated the same and produced the receipt issued by the Opposite Party No.3 Plan Packers and Movers.  As looking into this, the receipt No.7423 dt.28.05.2013.  Under this receipt, the Plan Packers and Movers received a sum of Rs.29,800/- from the Complainant’s Household Articles for transportation from Bengaluru to Mumbai and also produced the receipt issued by the Opposite Party No.3 Plan Packers and Movers receipt No.7424 dt.28.05.2013 under this receipt, the Opposite Party No.3 received a sum of Rs.14,100/- from the Complainant for transportation of Maruti Swift car bearing No.KA-53-MA-3562 from Bengaluru to Mumbai and also produced the Consignor Copy, it clearly reveals that the Opposite Parties accepted the Complainant’s car bearing No.KA-53-MA-3562 of the Complainant for transporting the said car from Bengaluru to Mumbai.  This evidence of the Complainant is not been denied or disputed by the Opposite Party No.1 to 3.  On the other hand, even in the version of Opposite Party No.3, they have clearly admitted that the Complainant booked the car bearing No.KA-53-MA-3562 for transporting from Bengaluru to Mumbai.   Therefore, it is proper to accept the contention of the Complainant that the Complainant had entrusted his Maruti Swift Car bearing No.KA-53-MA-3562 for transporting the said car from Bengaluru to Mumbai on 28.05.2013.  But the Opposite Party No.3 who undertake for transporting the Complainant’s car from Bengaluru to Mumbai has not delivered the said car to the Complainant at Mumbai.  This is very clear, as looking into the evidence of the Complainant that the alleged car has reached the Mumbai on 01.06.2013 but it was not delivered to the Complainant.  On the other hand, the said car which was received by Rajesh and Dinesh of the Transportation Company while parked on the roadside opposite to high city symphony building sector No.34C at 4 pm.  The said car was stolen; thereby the said Rajesh and Dinesh lodged complaint with the Mumbai Police.  On that basis the Mumbai Police have registered a theft case in Crime No.1149/2013.  In support of this, the Complainant has produced the copy of the F.I.R, thereby even this evidence is not also challenged or disputed by the Opposite Parties, thereby, it is proper to accept the contention of the Complainant that the Complainant’s car was not delivered by the Opposite Party No.3 to the Complainant at Mumbai.

15. It is further case of the Complainant that when the police were unable to traced the car the Complainant made a claim of Rs.5,58,508/- to the Opposite Party No.1 & 2.  The Opposite Party No.1 & 2 replied to the said claim taking untenable contentions and rejected the claim. In order to substantiate this, the Complainant in his sworn testimony, reiterated the same and in support of this, the Complainant had produced the Claim Form and also the letter addressed to the Opposite Parties on 11.03.2014, 16.06.2014 and 18.09.2014 requesting for settlement of the claim.  But the Opposite Parties have not settled the claim, this is clear as looking into the letter dt.04.03.2013 addressed by the Opposite Party No.1 & 2 to the Complainant.  Under this letter the Opposite Party No.1 & 2 informed that the claim of the Complainant was repudiated.  This is further clear as per the Letter dt.08.11.2014 addressed by the Opposite Party No.1 & 2 to the Complainant informing the reason for repudiation of the claim as the vehicle has been stolen.  As a result of the misuse of the key of the vehicle which was handed over to the transport Company by your good self, which has lead to loss of vehicle.

1. The vehicle has been stolen as result of misuse of the vehicle, which was handed over to transport company by your good self, which has lead to loss of vehicle.
2. The ignition key was kept on the table inside the room of Mr.Dinesh Sharma and the door of the room was unlocked, this was neither disclosed at the time of filing an FIR at the police station.
3. Further as per the documents FIR was lodged by Mr.Anil Kumar Yadav (Transporter) please clarify what action has been taken by your good self with documentary evidence confirming whether you have initiated any legal action against the transporter on the said loss as you have entered into a service contract with M/s Plan Packers  Movers”.
4. There was a contract between your good self & transporter as service providers please note as per the Indian Motor Tariff formulated by IRDA “The Company shall not be liable tin respect of any claim arising out of any contractual liability”. 

16. The learned Counsel for the Complainant argued that as seen from the allegation of the Complainant and also the version and the evidence placed by the Complainant is very clear that there is no dispute that the Complainant vehicle Maruti Swift Car bearing Registration No.KA-53-MA-3562 was consignee with Opposite Party No.3 for transporting the same from Bengaluru to Mumbai on 28.05.2013 and the said car was insured with Opposite Party from 11.01.2013 to 10.01.2014.  Even though the Opposite Party No.3 took the delivery of the car for transporting from Bengaluru to Mumbai, but Opposite Party No.3 has not delivered the said car to the Complainant at Mumbai, the said alleged car reached Mumbai on 01.06.2013 due to the mistake and negligence of the Opposite Party No.3 the said car was stolen thereby admittedly there is a loss of vehicle of the Complainant.  Since it was insured with Opposite Party No.1 & 2.  The Opposite Party No.1 & 2 is bounded duty to indemnify the Complainant by settling the claim.  On the other hand, the Opposite Party No.1 & 2 refuse to settle the claim and repudiate the claim of the Complainant that there is negligence on the part of the Opposite Party No.1 & 2 it is not correct procedure.  Therefore, the Opposite Party No.1 to 3 are jointly and severally liable to settle the claim of the Complainant.  This argument is not proper to accept.  Since as the defence taken by the Opposite Party No.1 & 2 repudiation of the claim of the Complainant is not unilaterally one and it is on the mistake of the Complainant to handed over the ignition key with the Opposite Party No.3, thereby on the negligence of the Opposite Party No.3 the alleged loss of the car belongs to the Complainant this is clear even as looking into the evidence placed by the Opposite Parties.  Therefore, it is not proper to accept the argument of the learned Counsel for the Complainant that the Opposite Party No.1 & 2 are liable to settle the claim.  On the other hand, it is proper to accept the defence as taken by the Opposite Party No.1 & 2.
17. It is the defence of the Opposite Party No.3, the Complainant had entrusted the transportation of the Maruti Swift Car bearing Registration No.KA:53-MA:3563 to be transported from Bengaluru to Mumbai vide consignment No.7432, the Opposite Party No.3 had entrusted the said transportation of the said Car from Bengaluru to Mumbai to M/s J.S.R.Car Transport Company vide Challan No.225, Receipt No.236 dt.28.05.2013 and the said M/s J.S.R.Car Transport Company took delivery of the said Car from the Complainant for transportation from Bengaluru to Mumbai and accordingly got the same transported to Mumbai which is well within the knowledge of the Complainant.    The Opposite Party No.3 was only an inter mediary Transporter who booked the Consignment from the Complainant and the same was rebooked with M/s J.S.R.Car Transport Company and thus the responsibility shifted to M/s J.S.R.Car Transport Company and hence the said M/s J.S.R.Car Transport Company was responsible for shifting of the Car from Bengaluru to Mumbai and deficiency in services as alleged by the Complainant could be alleged only as against the said M/s J.S.R.Car Transport Company and the Opposite Party No.1 & 2 who are the Insurance Company and not as against the Opposite Party No.3.  In order to substantiate this defence, Sri.A.Lourd Raj, Proprietor of the Opposite Party No.3.  In his sworn testimony, he has reiterated the same.  Except the interested version of the Opposite Party No.3 has not produced any evidence to show that the Complainant vehicle Maruti Swift car bearing No.KA:53-MA:3563 was entrusted to the M/s J.S.R.Transport Company by the Complainant.  On the other hand, even according to the defence of the Opposite Party No.3 itself, it is very clear that the Complainant booked the consignment No.7432 with Opposite Party No.3 for transportation of his Maruti Car from Bengaluru to Mumbai.  The Opposite Party No.3 had entrusted the transportation of the said car from Bengaluru to Mumbai to M/s J.S.R. Transport Company, the Opposite Party No.3 has entrusted the Complainant’s car for transporting from Bengaluru to Mumbai M/s J.S.R.Transport Company but not the Complainant thereby it is clear                       M/s J.S.R.Transport Company an agent of Opposite Party No.3.  Further from the evidence placed by the parties, it is crystal clear that the alleged Maruti Swift car belongs to the Complainant was not delivered to the Complainant at Mumbai, even though the said car reached Mumbai on 01.06.2013.  Unfortunately, the car of the Complainant was stolen this theft of the Complainant’s Car is due to the negligent act of M/s J.S.R.Transport Company.  The ignition key was kept the key of the car on the table without locking and the said car was parked without any safety due to this reason the alleged theft was occurred and the said car was not traced by the Police.  Even after alleging the complaint, thereby, the theft of the Complainant’s car is solely of the negligent act of the M/s J.S.R.Transport Company which is the Agent of Opposite Party No.3.  It is settled law any act committed by the Agent for that master is also liable, thereby the Opposite Party No.3 being the master of                                   M/s J.S.R.Transport Company.  Due to the negligent act of M/s J.S.R.Transport Company, the Opposite Party No.3 is also liable and thereby it is crystal clear that the theft of the car belongs to the Complainant is due to negligent act of the Opposite Party No.3 and Opposite Party No.3 fails to deliver the goods i.e., Maruti Swift car belongs to the Complainant at Mumbai, this amounts to deficiency of service on the part of the Opposite Party No.3.  Since the Opposite Party No.3 took the responsibility of shifting the Maruti car belongs to the Complainant from Bengaluru to Mumbai and Opposite Party No.3 fails to do so, thereby there is a deficiency of service on the part of the Opposite Party No.3.  Hence, the Opposite Party No.3 is liable to compensate the loss caused to the Complainant.   Hence, this point is held in the Affirmative.

18. POINT NO.3:- In the result, for the foregoing reasons, we proceed to pass the following order:

ORDER

The complaint is dismissed against Opposite Party No.1 & 2.

The complaint is allowed holding that there is deficiency in service by the Opposite Party No.3.

The Opposite Party No.3 is directed to pay a sum of Rs.5,58,508/- with interest at 18% p.a. from 01.06.2013 till the date of payment.

The Opposite Party No.3 is further directed to pay a sum of Rs.50,000/- to the Complainant as compensation for causing mental agony.

The Opposite Party No.3 is also liable to pay Rs.5,000/- as cost.

Supply free copy of this order to both the parties. 

 (Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Open Forum on this, 20^th day of July 2017)

         MEMBER                                            PRESIDENT
 

LIST OF WITNESSES AND DOCUMENTS

 Witness examined on behalf of the Complainant:

1. Sri.Suresh T, who being the Complainant has filed his affidavit.

 List of documents filed by the Complainant:

1. Copy of Registration Certificate
2. Copy of Insurance Policy
3. Copy of Movers and Packers consignment receipt
4. Copy of FIR and complaint
5. Copy of Letter
6. Original receipt cum acknowledgement issued by Bajaj Allianz Company Limited.

Witness examined on behalf of the Opposite Party:

1. Sri.A.Lourd Raj, the Proprietor of the Opposite Party No.3.
2. Sri.Krishna Sheernali, the Authorized Signatory of the Opposite Parties.

List of documents filed by the Opposite Party:

1. Citations

     MEMBER                                             PRESIDENT